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Wait… There’s More Than Just A Privacy Policy? What Start-ups Should Know About Privacy Law In Canada

Jan 30 Posted By Amanda Branch | 0 comment

Amanda Branch is an associate at Bereskin & Parr LLP with extensive experience in privacy law, including cybersecurity and data breach. Her practice focuses on copyright and digital media, as well as regulatory, advertising and marketing law.

Meet Amanda, along with other professionals from Bereskin & Parr, Quantius and IICIE, on Feb. 12, 2019 at "Start (Me) Up" to learn about "Best Practice for Growth, Funding and IP Protection for Digital Startups". Register now at EventBrite to secure your spot!


 

Pop quiz! 

 
Data is: 
(a) The world’s most valuable resource,
(b) The new oil, or
(c) The new bacon. 
 
No matter how you describe it, data is extremely important to organizations. With smart technology and connected devices all around us, consumers are increasingly becoming aware of the importance of privacy and protection of personal information. New technologies give organizations an almost unlimited capacity to collect vast amounts of personal information, analyze it, use it and communicate it to others; however, organizations must be careful to do so in a way that is compliant with privacy legislation. 
 
Read on or, even better, come join us in person on February 12, to learn more about what start-ups should know about privacy law (and more!) in Canada (spoiler alert: yes, there is more than just a privacy policy).  
 
Starting with the basics
 
The Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies to private sector organizations in Canada that collect, use, or disclose personal information in the course of commercial activity, except where that activity takes place entirely within a province with “substantially similar” legislation (currently Quebec, Alberta and British Columbia) in which case, the collection, use, and disclosure of personal information will be subject to the particular privacy legislation for that province.
 
What is “personal information”? 
Personal information is any “information about an identifiable individual”. This is a very broad definition and can include things like name, address, government-issued identifiers, health information and medical records, financial information and biometric data. Information need not directly identify an individual to be “about” an individual; it only needs to “permit” or “lead” to the possible identification of the individual.
 
What you should know
 
1. Do I need a privacy policy?
Yes, if your organization is subject to PIPEDA, then you are required to develop and implement policies and practices and you must make these policies readily available to consumers so they understand how you handle personal information. 
 
2. What’s so important about consent? 
Consent is the cornerstone of Canada’s private sector privacy legislation. Consent must be valid, which means that individuals must understand what you are doing with their PI before granting consent. It also means that consent must be obtained before or at the time of collection. 
 
3. We have a privacy policy on our website. Our work here is done, right? 
Wrong. A privacy policy is just a part of your obligations under privacy law. In addition to external documents, businesses must develop and implement internal policies and procedures to protect the personal information handled by employees. These policies should address, for example, your internal practices for the collection, handling and storage of personal information and how you will respond to access requests or complaints. 
 
Once you have these policies, you need to do more than file them away never to be seen again. Policies and practices should be regularly audited and updated. 
 
4. We’ve collected a bunch of personal information that we’re going to keep forever. Is that okay? 
Nope. Generally speaking, it is not appropriate to keep personal information indefinitely. Data should be retained only as long as required to satisfy the stated purpose at the time of collection. Organizations should have policies and procedures in place for the retention and destruction of personal information and once the information is no longer required, it should be destroyed, erased or rendered anonymous. 
 
5. Uh oh, we just had a breach. Now what? 
Hopefully you planned ahead and have a robust data breach response plan in place. 
 
As of November 1, 2018, the mandatory breach notification requirements under PIPEDA came in to force. Pursuant to the legislation, if an organization suffers a breach of security safeguards that gives rise to a “real risk of significant harm”, the organization must (i) report the incident to the Office of the Privacy Commissioner of Canada (the “OPC”); (ii) notify affected individuals; and (iii) notify any other third party organizations or government institutions that are in a position to mitigate the risk of harm to affected individuals. These notifications must be made as soon as feasible after the organization determines that the breach has occurred. 
 
See you on February 12


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